International Law: Treaties, Statehood, and Dispute Resolution
Effects of Treaties
First Effect: Between Contracting Parties (Art. 26 of the Convention)
A fundamental principle in international law states that any treaty held regularly is mandatory for the contracting states, who must comply in good faith. This embodies the principle of pacta sunt servanda, the most important rule in international law. Each party must take necessary measures to comply with and apply domestic law, including promulgation, publication, and implementation. A state cannot invoke its own laws or deficiencies therein to justify non-compliance with treaty obligations.
Good faith approach in international law: Actions should not conflict with treaty objectives.
Irretroactivity: Treaties do not govern past situations unless explicitly stated or implied by their nature.
Territoriality: Treaty implementation applies throughout the ratifying state, with exceptions like federations allowing partial implementation in some states.
Colonial clause: Allows nations with colonies to exclude their application.
Incorporation procedure: In Chile, a treaty follows the same legislative process as any law.
Self-executing treaties: These require no further rules for implementation.
Second Effect: All Persons (Art. 34 of the Convention)
Treaties primarily confer rights and impose obligations on states, not third countries. According to the Vienna Convention, a treaty does not create obligations or rights for third states without their consent. However, contracting parties may intend to confer an irrevocable right to a third country (Art. 35).
Grounds for Invalidity of Treaties
Irregularity of Consent (Domestic Law)
Each state’s law determines who can conclude treaties. Constitutional limitations, such as Congressional approval (e.g., in Chile), also apply.
Error
Error invalidates consent if it relates to a fundamental basis of that consent. However, a state cannot invoke error if it contributed to it or was aware of its possibility.
Fraud (Dolo)
If a state is induced to conclude a treaty through fraudulent conduct by another state, it can invoke fraud to invalidate consent.
Corruption of a State Representative
If consent is obtained through corruption of a state’s representative by another negotiating state, the first state can invoke corruption as grounds for invalidity.
Coercion of a State Representative
Coercion through acts or threats against a state representative invalidates consent, rendering the treaty void.
Coercion of a State by Threat or Use of Force (Art. 52)
A treaty is void if concluded under threat or use of force, violating international law principles enshrined in the UN Charter.
Violation of a Peremptory Norm (Jus Cogens)
A treaty conflicting with a peremptory norm of general international law (jus cogens) is void. Jus cogens norms are universally accepted and non-derogable, modifiable only by a subsequent norm of the same character (e.g., prohibitions on aggression, slavery, crimes against humanity).
Causes of Treaty Termination
Provisions within the Treaty
- Expiration date: Treaties may specify a fixed end date.
- Fixed time period: Treaties may have a defined duration.
- Fulfillment of conditions precedent: Treaties end upon fulfillment of specified conditions.
- Termination and withdrawal: Treaties may allow parties to withdraw after a certain period or with prior notice.
Will of One Party (Abrogation)
- Express abrogation: A new treaty explicitly terminates a prior one.
- Tacit abrogation: A new treaty on the same subject implicitly replaces a prior one, or its provisions are incompatible with the prior treaty.
General International Law
- Emergence of a contrary custom: A custom can abrogate a treaty if it aims to do so or if its content is incompatible with the treaty.
- Treaty execution: Treaties involving a single act or conduct terminate upon fulfillment (e.g., territory transfer).
- Impossibility of performance: Treaties terminate if performance becomes impossible (e.g., a ceded island disappears).
- Disappearance of a state: Treaties typically terminate when a state ceases to exist.
- Emergence of a jus cogens norm: A new jus cogens norm terminates existing treaties in conflict with it.
- Serious treaty violation: A grave breach of a bilateral treaty allows the other party to terminate or suspend it.
Subjects of International Law
These are entities directly subject to international legal norms.
States
A state is a community with a territory, a population, and an organized public authority (government). Sovereignty is the ability to honor international obligations. The elements are:
- Population: Includes all residents, regardless of nationality.
- Territory: Includes land, internal waters, territorial sea, and airspace. Areas with sovereign rights (e.g., contiguous zone, exclusive economic zone) are not part of the territory.
- Government: International law is generally indifferent to internal structure, but effective internal control is necessary to fulfill international commitments.
- Sovereignty: The defining element of statehood in international law. States are directly subject to international law and equal in sovereignty.
Principles of State Action
Principle of Freedom of Action
- Equality of states.
- Legality of internal acts: International law does not apply to internal affairs (reserved domain).
- Constitutional autonomy: Non-intervention and self-determination principles apply.
Limits to Freedom of State Action
- Respect for international law.
- Non-intervention and non-use of force.
- Peaceful settlement of disputes.
Immunity from Jurisdiction
Certain entities and persons are exempt from the jurisdiction of the state where they are located:
- Foreign states: Enjoy sovereign immunity, excluding criminal and civil jurisdiction, as well as measures of constraint on state-controlled property.
- Foreign armed forces: Enjoy immunity for acts related to official duties when present with consent.
- Foreign diplomatic agents: Enjoy criminal immunity and generally civil and administrative immunity, except for private property actions, inheritance matters, or commercial activities outside official duties. Similar immunities apply to heads of state, heads of government, and foreign ministers abroad.
- International organizations and officials: Granted immunity under international treaties.
Circumstances Precluding Illegitimacy
While illegal acts violate international obligations, certain circumstances preclude unlawfulness and exempt a state from liability.
Reprisal
A justified offense by one state against another in response to a prior unlawful act. Reprisals aim to stop, redress, and prevent future unjust injury. Conditions for legitimacy include a prior illegal act, unsuccessful attempts at redress, proportionality, and no use of armed force.
Self-Defense
The right to repel aggression under UN Charter conditions.
Force Majeure and Fortuitous Event
Inability to act otherwise due to circumstances beyond control (e.g., aircraft forced to land due to weather).
Consent of the Injured State
Consent negates illegality (e.g., cross-border police pursuits).
Legal Consequences of Wrongful Acts
A wrongful act creates a legal relationship requiring reparation. Forms of reparation include:
- Satisfaction: Addresses moral damages (e.g., apologies, honors to the flag).
- Restoration: Restores the situation prior to the wrongful act (e.g., releasing detainees).
- Compensation: Covers damages and lost profits when restoration is insufficient.
Diplomatic Protection
When a foreign individual or company faces treatment contrary to international law, they must exhaust local remedies before seeking diplomatic protection from their state. The state then takes up the claim, elevating it to an international level. If diplomatic efforts fail, the state can pursue international legal action.
Requirements for Diplomatic Protection
- Nationality: Continuous nationality from the time of injury to claim presentation.
- Exhaustion of local remedies: All available domestic remedies must be pursued first.
Diplomatic Asylum
A regional custom in Latin America, offering refuge in diplomatic premises (e.g., embassies). Often leads to territorial asylum.
Territorial Asylum
Refuge granted within a country’s territory. Conventions often require the granting state to choose between punishment or extradition of offenders. Recent conventions on hijacking allow for trial or extradition in the country of refuge.
Safe passage is the logical consequence of asylum, but disputes arise when denied. Warships in foreign ports remain under their state’s jurisdiction.